¶ 30. Furthermore, Erdle contends that, even if the Non-Compete Agreement was deemed validly executed, it would be unenforceable as it is unreasonable. House Committee Introduces ‘Securing a Strong Retirement Act of 2020’, Examining Trump and Biden’s Plans on Social Security, 401(k)s and Taxes, HSA Crash Course: Rules, Regulations and Tax Issues, DOL Issues Final Rule With Softer Stance on ESG, Allstate Sued Over TDFs Offered in 401(k), DOL ERISA Enforcement Results Increase From Previous Year. On September 27, 2011, Erdle resigned from his position at ISCO to work for HD Supply, Inc. ("HD Supply"), who is one of ISCO's primary competitors.

Ferrando at ¶ 90. v. Down-Lite Internatl., Inc., 1st Dist.
A proposed class action filed on behalf of participants in the ISCO Industries Inc. Def. The insurer refused to provide coverage because Wendy's had not reported the claim during the policy period. As of December 31, 2012, the ISCO shares purchased by the ESOP were revalued by an independent appraiser at $39 million—a decrease of more than 60%. It has agreed to pay $5 million into a settlement fund. 12. This court reviews a trial court's decision granting a motion to dismiss under Civ.R. 15 requires a court to freely give leave to amend in the interest of justice, "a trial court properly refuses to grant leave to amend when amendment would be futile." {¶25} The court in US HF Cellular applied the plain language of the policy in determining that the insured's claim coverage did not extend past the 60-day reporting deadline. ISCO cites several cases, however, that purportedly extend Ferrando beyond its facts.

According to the complaint, the plaintiff alleges that on Sept. 4, 2017, he was injured while in the course and scope of his employment with defendant when he tripped and fell into an improperly filled pothole. ¶ 23. [DE-1], Compl. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. 2:05-CV-803, 2007 WL 710242, at *3. This appeal by ISCO ensued. ISCO Industries is a global customized piping solutions provider based in Louisville, KY. ISCO stocks and sells a wide variety of piping materials and provides solutions for various environmental, geothermal, golf, industrial, landfill, mining, municipal, nuclear, waterworks and culvert-lining applications worldwide. Other defendants includes trusts into and out of which the proceeds of the sale of employer stock have been paid, as well as the family owners of …

{¶26} Here, the plain language of the policy required ISCO to report a claim no later than 90 days after the end of the policy period. Therefore, an amendment to ISCO's complaint would be futile, and the trial court did not err in refusing to allow ISCO to amend its complaint. The affidavit further certifies that a copy of the Motion for Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction was sent to Erdle via Priority Mail on the same date and that it had not been returned to ISCO as undeliverable. To be enforceable in North Carolina, a covenant not to compete must be: "(1) in writing; (2) reasonable as to time and territory; (3) made a part of the employment contract; (4) based on valuable consideration; and (5) designed to protect a legitimate business interest of the employer." The complaint concludes its technical fiduciary breach and prohibited transaction allegations by calling on the court to issue various remedies including re-establishment of the ESOP, monetary compensation and the installment of an independent trustee. EMPLOYEE STOCK OWNERSHIP PLAN. The policy here is also a directors and officers liability coverage policy, not a UIM policy. {¶5} The policy contains a "Notice Provision," which provides: {¶6} Great American denied coverage to ISCO on the basis that it had failed to timely notify Great American of the Wolseley Canada lawsuit. The notice provision in this case also eliminates the "trap" concern in Helberg, and it provides a 90-day cushion after the policy ends in which ISCO can provide notice. The UIM policy in Ferrando required "prompt notice" to the insurer. {¶46} Therefore, reading the definitions of claim together with the "savings clause," the "savings clause" provides that if ISCO fails to report a written demand for relief, that failure will not negate ISCO's right to report a civil proceeding under the policy or any renewal of the policy. Section 5 of the Non-Compete Agreement requires Erdle to return all memoranda, notes, records, code books, papers, and other documents and all copies thereof relating to ISCO's business or the business of its subsidiaries or affiliates upon the termination of Erdle's employment with ISCO. The lawsuit is directly tied into another in which Wilmington Trust agreed in January to a settlement valued at $5 million. Wow, what an incredible finding. [DE-1], Compl. The lawsuit is directly related to another filed recently under ERISA, which Wilmington Trust agreed to settle in January to the tune of $5 million. {¶29} In Ferrando, the Ohio Supreme Court held that when an insurer's denial of underinsured motorist ("UIM") coverage is based upon an insured's failure to comply with a prompt-notice provision, the insurer is not required to provide coverage, so long as the insurer has been prejudiced by the insured's unreasonable delay in providing notice. At the outset, the court notes that the statute of frauds, whether in Kentucky or North Carolina, requires that agreements lasting more than one year need to be in writing and signed by the party against whom the contract would be enforced. Jones Mgt. See Great Water Capital Partners, L.L.C. See McCarty v. Natl. Because the piping distribution business is highly competitive, ISCO claims that it makes significant investments of time and money into training its salespersons to become knowledgeable about its business, products, capabilities, and sales strategies to enable them to effectively and efficiently market and sells its products and services. ISCO's argument that Helberg applies such that its policy renewal creates an expectation of continuous and seamless coverage, so long as ISCO reported its claim in a reasonable time, is not supported by the plain language of the policy. at ¶ 90, quoting Ruby v. Midwestern Indemn. The policy at issue in McKean, however, like the policy in Ferrando, required prompt notice. ISCO also claimed that DPF "failed to pay ISCO at least $62,351.07 for the materials provided" under the contract at issue, and argued that Mr. Fleming's lawsuit is an attempt "to avoid payment of at least $62,351.07 to ISCO and unspecified compensatory damages, liquidated damages, and punitive damages exceeding $15,000.00." {¶35} In McCarty, the United States Court of Appeals for the Sixth Circuit applying Ohio law rejected an argument that the notice-prejudice rule applied to the terms of a malpractice-insurance policy, which provided coverage only for claims made against the insured during the policy period, and "promptly reported" to the insurer, "but in any case no later than sixty days after the end of the policy period." ISCO contends that Erdle signed a Non-Disclosure Agreement when he began working for ISCO as a salesperson on August 25, 2003. In this case, the notice provision in the policy is unambiguous.

O'Neill further explained that the Non-Compete Agreement needed to restrict both existing and prospective customers because the nature of selling its products usually required approval from a chain of prospective buyers.
{¶1} Plaintiffs-appellants ISCO Industries, Inc., and ISCO Canada, Inc., (collectively "ISCO") appeal the dismissal of their complaint against their insurer, defendant-appellee Great American Insurance Company ("Great American"), arising from Great American's refusal to provide coverage with respect to a lawsuit and settlement between ISCO and a third-party Canadian corporation. Great American argued that the filing of the Wolseley Canada lawsuit was a "claim" under the original policy period, and under the policy's notice provision, ISCO was required to give notice to Great American regarding the Wolseley Canada lawsuit no later than 90 days after the expiration of the original policy period, or June 17, 2014.
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¶ 30. Furthermore, Erdle contends that, even if the Non-Compete Agreement was deemed validly executed, it would be unenforceable as it is unreasonable. House Committee Introduces ‘Securing a Strong Retirement Act of 2020’, Examining Trump and Biden’s Plans on Social Security, 401(k)s and Taxes, HSA Crash Course: Rules, Regulations and Tax Issues, DOL Issues Final Rule With Softer Stance on ESG, Allstate Sued Over TDFs Offered in 401(k), DOL ERISA Enforcement Results Increase From Previous Year. On September 27, 2011, Erdle resigned from his position at ISCO to work for HD Supply, Inc. ("HD Supply"), who is one of ISCO's primary competitors.

Ferrando at ¶ 90. v. Down-Lite Internatl., Inc., 1st Dist.
A proposed class action filed on behalf of participants in the ISCO Industries Inc. Def. The insurer refused to provide coverage because Wendy's had not reported the claim during the policy period. As of December 31, 2012, the ISCO shares purchased by the ESOP were revalued by an independent appraiser at $39 million—a decrease of more than 60%. It has agreed to pay $5 million into a settlement fund. 12. This court reviews a trial court's decision granting a motion to dismiss under Civ.R. 15 requires a court to freely give leave to amend in the interest of justice, "a trial court properly refuses to grant leave to amend when amendment would be futile." {¶25} The court in US HF Cellular applied the plain language of the policy in determining that the insured's claim coverage did not extend past the 60-day reporting deadline. ISCO cites several cases, however, that purportedly extend Ferrando beyond its facts.

According to the complaint, the plaintiff alleges that on Sept. 4, 2017, he was injured while in the course and scope of his employment with defendant when he tripped and fell into an improperly filled pothole. ¶ 23. [DE-1], Compl. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. 2:05-CV-803, 2007 WL 710242, at *3. This appeal by ISCO ensued. ISCO Industries is a global customized piping solutions provider based in Louisville, KY. ISCO stocks and sells a wide variety of piping materials and provides solutions for various environmental, geothermal, golf, industrial, landfill, mining, municipal, nuclear, waterworks and culvert-lining applications worldwide. Other defendants includes trusts into and out of which the proceeds of the sale of employer stock have been paid, as well as the family owners of …

{¶26} Here, the plain language of the policy required ISCO to report a claim no later than 90 days after the end of the policy period. Therefore, an amendment to ISCO's complaint would be futile, and the trial court did not err in refusing to allow ISCO to amend its complaint. The affidavit further certifies that a copy of the Motion for Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction was sent to Erdle via Priority Mail on the same date and that it had not been returned to ISCO as undeliverable. To be enforceable in North Carolina, a covenant not to compete must be: "(1) in writing; (2) reasonable as to time and territory; (3) made a part of the employment contract; (4) based on valuable consideration; and (5) designed to protect a legitimate business interest of the employer." The complaint concludes its technical fiduciary breach and prohibited transaction allegations by calling on the court to issue various remedies including re-establishment of the ESOP, monetary compensation and the installment of an independent trustee. EMPLOYEE STOCK OWNERSHIP PLAN. The policy here is also a directors and officers liability coverage policy, not a UIM policy. {¶5} The policy contains a "Notice Provision," which provides: {¶6} Great American denied coverage to ISCO on the basis that it had failed to timely notify Great American of the Wolseley Canada lawsuit. The notice provision in this case also eliminates the "trap" concern in Helberg, and it provides a 90-day cushion after the policy ends in which ISCO can provide notice. The UIM policy in Ferrando required "prompt notice" to the insurer. {¶46} Therefore, reading the definitions of claim together with the "savings clause," the "savings clause" provides that if ISCO fails to report a written demand for relief, that failure will not negate ISCO's right to report a civil proceeding under the policy or any renewal of the policy. Section 5 of the Non-Compete Agreement requires Erdle to return all memoranda, notes, records, code books, papers, and other documents and all copies thereof relating to ISCO's business or the business of its subsidiaries or affiliates upon the termination of Erdle's employment with ISCO. The lawsuit is directly tied into another in which Wilmington Trust agreed in January to a settlement valued at $5 million. Wow, what an incredible finding. [DE-1], Compl. The lawsuit is directly related to another filed recently under ERISA, which Wilmington Trust agreed to settle in January to the tune of $5 million. {¶29} In Ferrando, the Ohio Supreme Court held that when an insurer's denial of underinsured motorist ("UIM") coverage is based upon an insured's failure to comply with a prompt-notice provision, the insurer is not required to provide coverage, so long as the insurer has been prejudiced by the insured's unreasonable delay in providing notice. At the outset, the court notes that the statute of frauds, whether in Kentucky or North Carolina, requires that agreements lasting more than one year need to be in writing and signed by the party against whom the contract would be enforced. Jones Mgt. See Great Water Capital Partners, L.L.C. See McCarty v. Natl. Because the piping distribution business is highly competitive, ISCO claims that it makes significant investments of time and money into training its salespersons to become knowledgeable about its business, products, capabilities, and sales strategies to enable them to effectively and efficiently market and sells its products and services. ISCO's argument that Helberg applies such that its policy renewal creates an expectation of continuous and seamless coverage, so long as ISCO reported its claim in a reasonable time, is not supported by the plain language of the policy. at ¶ 90, quoting Ruby v. Midwestern Indemn. The policy at issue in McKean, however, like the policy in Ferrando, required prompt notice. ISCO also claimed that DPF "failed to pay ISCO at least $62,351.07 for the materials provided" under the contract at issue, and argued that Mr. Fleming's lawsuit is an attempt "to avoid payment of at least $62,351.07 to ISCO and unspecified compensatory damages, liquidated damages, and punitive damages exceeding $15,000.00." {¶35} In McCarty, the United States Court of Appeals for the Sixth Circuit applying Ohio law rejected an argument that the notice-prejudice rule applied to the terms of a malpractice-insurance policy, which provided coverage only for claims made against the insured during the policy period, and "promptly reported" to the insurer, "but in any case no later than sixty days after the end of the policy period." ISCO contends that Erdle signed a Non-Disclosure Agreement when he began working for ISCO as a salesperson on August 25, 2003. In this case, the notice provision in the policy is unambiguous.

O'Neill further explained that the Non-Compete Agreement needed to restrict both existing and prospective customers because the nature of selling its products usually required approval from a chain of prospective buyers.
{¶1} Plaintiffs-appellants ISCO Industries, Inc., and ISCO Canada, Inc., (collectively "ISCO") appeal the dismissal of their complaint against their insurer, defendant-appellee Great American Insurance Company ("Great American"), arising from Great American's refusal to provide coverage with respect to a lawsuit and settlement between ISCO and a third-party Canadian corporation. Great American argued that the filing of the Wolseley Canada lawsuit was a "claim" under the original policy period, and under the policy's notice provision, ISCO was required to give notice to Great American regarding the Wolseley Canada lawsuit no later than 90 days after the expiration of the original policy period, or June 17, 2014.
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isco industries lawsuit


The court analyzed Helberg and determined that it stood for the proposition that so long as a policy is renewed and an insured provides notice of a claim within a reasonable time, coverage exists even if the notice of the claim was not timely. Furthermore, Section 6 of the Non-Compete Agreement contains non-solicitation restrictive covenants that provide, inter alia, that: [DE-1], Compl. C-130005, 2013-Ohio-4711, 2013 WL 5777076, ¶ 14. 276, 280, 530 S.E.2d 878, 881 (2000). In this position, ISCO contends that Erdle will be able to contact ISCO's customers in these territories to whom he sold while at ISCO, solicit their business, and capitalize on the goodwill which ISCO had earned with these customers. {¶11} Before delving into the substance of ISCO's complaint, we must determine whether Kentucky or Ohio law applies to this dispute. The court determined that "[i]n the present case, there was no cancellation of coverage, nor did the insured change insurance carriers. For their part, the plaintiffs were all participants in the ISCO Industries Inc. ESOP.

¶ 30. Furthermore, Erdle contends that, even if the Non-Compete Agreement was deemed validly executed, it would be unenforceable as it is unreasonable. House Committee Introduces ‘Securing a Strong Retirement Act of 2020’, Examining Trump and Biden’s Plans on Social Security, 401(k)s and Taxes, HSA Crash Course: Rules, Regulations and Tax Issues, DOL Issues Final Rule With Softer Stance on ESG, Allstate Sued Over TDFs Offered in 401(k), DOL ERISA Enforcement Results Increase From Previous Year. On September 27, 2011, Erdle resigned from his position at ISCO to work for HD Supply, Inc. ("HD Supply"), who is one of ISCO's primary competitors.

Ferrando at ¶ 90. v. Down-Lite Internatl., Inc., 1st Dist.
A proposed class action filed on behalf of participants in the ISCO Industries Inc. Def. The insurer refused to provide coverage because Wendy's had not reported the claim during the policy period. As of December 31, 2012, the ISCO shares purchased by the ESOP were revalued by an independent appraiser at $39 million—a decrease of more than 60%. It has agreed to pay $5 million into a settlement fund. 12. This court reviews a trial court's decision granting a motion to dismiss under Civ.R. 15 requires a court to freely give leave to amend in the interest of justice, "a trial court properly refuses to grant leave to amend when amendment would be futile." {¶25} The court in US HF Cellular applied the plain language of the policy in determining that the insured's claim coverage did not extend past the 60-day reporting deadline. ISCO cites several cases, however, that purportedly extend Ferrando beyond its facts.

According to the complaint, the plaintiff alleges that on Sept. 4, 2017, he was injured while in the course and scope of his employment with defendant when he tripped and fell into an improperly filled pothole. ¶ 23. [DE-1], Compl. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. 2:05-CV-803, 2007 WL 710242, at *3. This appeal by ISCO ensued. ISCO Industries is a global customized piping solutions provider based in Louisville, KY. ISCO stocks and sells a wide variety of piping materials and provides solutions for various environmental, geothermal, golf, industrial, landfill, mining, municipal, nuclear, waterworks and culvert-lining applications worldwide. Other defendants includes trusts into and out of which the proceeds of the sale of employer stock have been paid, as well as the family owners of …

{¶26} Here, the plain language of the policy required ISCO to report a claim no later than 90 days after the end of the policy period. Therefore, an amendment to ISCO's complaint would be futile, and the trial court did not err in refusing to allow ISCO to amend its complaint. The affidavit further certifies that a copy of the Motion for Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction was sent to Erdle via Priority Mail on the same date and that it had not been returned to ISCO as undeliverable. To be enforceable in North Carolina, a covenant not to compete must be: "(1) in writing; (2) reasonable as to time and territory; (3) made a part of the employment contract; (4) based on valuable consideration; and (5) designed to protect a legitimate business interest of the employer." The complaint concludes its technical fiduciary breach and prohibited transaction allegations by calling on the court to issue various remedies including re-establishment of the ESOP, monetary compensation and the installment of an independent trustee. EMPLOYEE STOCK OWNERSHIP PLAN. The policy here is also a directors and officers liability coverage policy, not a UIM policy. {¶5} The policy contains a "Notice Provision," which provides: {¶6} Great American denied coverage to ISCO on the basis that it had failed to timely notify Great American of the Wolseley Canada lawsuit. The notice provision in this case also eliminates the "trap" concern in Helberg, and it provides a 90-day cushion after the policy ends in which ISCO can provide notice. The UIM policy in Ferrando required "prompt notice" to the insurer. {¶46} Therefore, reading the definitions of claim together with the "savings clause," the "savings clause" provides that if ISCO fails to report a written demand for relief, that failure will not negate ISCO's right to report a civil proceeding under the policy or any renewal of the policy. Section 5 of the Non-Compete Agreement requires Erdle to return all memoranda, notes, records, code books, papers, and other documents and all copies thereof relating to ISCO's business or the business of its subsidiaries or affiliates upon the termination of Erdle's employment with ISCO. The lawsuit is directly tied into another in which Wilmington Trust agreed in January to a settlement valued at $5 million. Wow, what an incredible finding. [DE-1], Compl. The lawsuit is directly related to another filed recently under ERISA, which Wilmington Trust agreed to settle in January to the tune of $5 million. {¶29} In Ferrando, the Ohio Supreme Court held that when an insurer's denial of underinsured motorist ("UIM") coverage is based upon an insured's failure to comply with a prompt-notice provision, the insurer is not required to provide coverage, so long as the insurer has been prejudiced by the insured's unreasonable delay in providing notice. At the outset, the court notes that the statute of frauds, whether in Kentucky or North Carolina, requires that agreements lasting more than one year need to be in writing and signed by the party against whom the contract would be enforced. Jones Mgt. See Great Water Capital Partners, L.L.C. See McCarty v. Natl. Because the piping distribution business is highly competitive, ISCO claims that it makes significant investments of time and money into training its salespersons to become knowledgeable about its business, products, capabilities, and sales strategies to enable them to effectively and efficiently market and sells its products and services. ISCO's argument that Helberg applies such that its policy renewal creates an expectation of continuous and seamless coverage, so long as ISCO reported its claim in a reasonable time, is not supported by the plain language of the policy. at ¶ 90, quoting Ruby v. Midwestern Indemn. The policy at issue in McKean, however, like the policy in Ferrando, required prompt notice. ISCO also claimed that DPF "failed to pay ISCO at least $62,351.07 for the materials provided" under the contract at issue, and argued that Mr. Fleming's lawsuit is an attempt "to avoid payment of at least $62,351.07 to ISCO and unspecified compensatory damages, liquidated damages, and punitive damages exceeding $15,000.00." {¶35} In McCarty, the United States Court of Appeals for the Sixth Circuit applying Ohio law rejected an argument that the notice-prejudice rule applied to the terms of a malpractice-insurance policy, which provided coverage only for claims made against the insured during the policy period, and "promptly reported" to the insurer, "but in any case no later than sixty days after the end of the policy period." ISCO contends that Erdle signed a Non-Disclosure Agreement when he began working for ISCO as a salesperson on August 25, 2003. In this case, the notice provision in the policy is unambiguous.

O'Neill further explained that the Non-Compete Agreement needed to restrict both existing and prospective customers because the nature of selling its products usually required approval from a chain of prospective buyers.
{¶1} Plaintiffs-appellants ISCO Industries, Inc., and ISCO Canada, Inc., (collectively "ISCO") appeal the dismissal of their complaint against their insurer, defendant-appellee Great American Insurance Company ("Great American"), arising from Great American's refusal to provide coverage with respect to a lawsuit and settlement between ISCO and a third-party Canadian corporation. Great American argued that the filing of the Wolseley Canada lawsuit was a "claim" under the original policy period, and under the policy's notice provision, ISCO was required to give notice to Great American regarding the Wolseley Canada lawsuit no later than 90 days after the expiration of the original policy period, or June 17, 2014.

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